Following the 2015 United States Supreme Court decision (Obergefell v. Hodges) legalizing marriage between same-sex couples in Georgia and throughout the county, there are already many same-sex divorces in Georgia being filed. Before the June 26, 2015 Supreme Court ruling, divorces between same sex couples were not highly common. One of the reasons being because not many states recognized their marriage in the first place, meaning that unless they were in the state they were married in and even then that state might have residency requirements and other requirements. So unless the couple was willing to meet all the requirements, divorce was very difficult. Before the Supreme Court’s recent decision legalizing same-sex marriage, some same-sex married couples were even having to petition the court for annulments rather than divorces in states that did not recognize the marriage (such as Georgia).
Uncontested Same-Sex Divorces
Most same-sex divorce cases currently being filed in Georgia are uncontested. This is because most of the marriages are still rather short, not involving much marital assets and debts. Also, because Georgia same-sex marriages are rather still short, alimony is not an issue. Finally, since most same-sex marriages do not involve child support, child custody and visitation issues, the divorces are easier to negotiate, making uncontested divorces easier to negotiate and more common. So if you are in a same-sex marriage and are facing divorce in Georgia, you should approach the divorce with the goal of settling the divorce as an uncontested matter if possible.
Advantages of Marriage for Same-Sex Partners
For gay couples in a committed relationship taking the opportunity to take their union to the next step, there are some important legal issues to consider. If one spouse dies, issues involving inheritance, taxes, property and parental rights are generally less complicated than for an unmarried couple. Marriage allows one spouse to inherit automatically from their other spouse, and they can generally save on income taxes by filing a joint Federal and Georgia State tax return. Also, the federal (and Georgia state government to a lesser degree) provides a number of benefits to married couples, including health care, Social Security, nursing home care and family leave. The 2015 Supreme Court ruling that struck down provisions of the Defense of Marriage Act, federal benefits apply in most cases to all legally-married couples, whether they are heterosexual or homosexual. In the Obergefell v. Hodges decision, the United States Supreme Court that the 14th Amendment requires all U.S. state laws (including Georgia ) to recognize same-sex marriages, leaving Section 2 of the Defense of Marriage Act unenforceable.
As a married couple, purchases you make together are considered joint property. Spouses are also entitled to seek alimony in the event of a divorce. However, you may also be responsible for your spouse’s debts. For same-sex couples where one partner is not a U.S. resident, marriage can also be an advantage. These are all issues that opposite-sex couples traditionally face, and it is not anticipated that this will change much in same-sex divorces.
Child Custody and Child Support in Georgia Same-Sex Marriages
One issue that has already come up in several same-sex divorce cases in Georgia is regarding children. If one of the partners (a female) in a same-sex marriage gives birth to a child during the marriage, their spouse does not automatically become a parent to the child. Rather, they will have to adopt their spouse’s child. A legitimization or paternity action is not appropriate either; only an adoption will be allowed under Georgia law. This is because legitimization and paternity actions deal with the issues of who is the biological father / parents of the child; and not who is acting as a parent or who is married to the biological mother.
The issue that is becoming more common in Georgia same-sex divorce cases is that the birth mother can refuse to allow their spouse to adopt the child, and file for divorce, which will ultimately probably prevent their ex-spouse from being able to see and spend time with the child. In addition, the birth mother cannot force their spouse to adopt the child; and their spouse can file for divorce and never be responsible for paying child support. So far, the Georgia same-sex divorces that we have seen involving these issues are from rather short marriages. However, we anticipate this being a much more emotionally difficult issue later when parties have been married several years, raising children during most of the marriage.
If you have a same-sex partner and plan to have or adopt children, being married can be a significant advantage in giving both people equal rights to the children. If the relationship ends, having been legally married can be a financial advantage. It is also anticipated that the “best interest of the child standard” will pay an even larger part in custody and visitation decisions with children of same-sex couples seeking divorce.
Alimony in Georgia Same-Sex Marriages
When filing for divorce, at this point same-sex marriage and divorce is a fairly new area and it is still being defined, it can only be assumed that for now it will follow the same lines of a common divorce with some differences, especially in the alimony, asset division, and child custody. In the case of alimony, it may be calculated differently that other marriages, the reason being that length of the marriage is usually a factor in awarding alimony. However, since same-sex marriage is fairly a new right. But the tax advantages to he payer and tax disadvantages to the receiver of alimony will be eliminated with all Georgia divorce cases finalized after December 31, 2018. This does not change the fact that it is important the length of the marriage be clearly defined, as this is one of the major factors in deciding if alimony will be paid, and if so, how much. Other important factors regarding alimony in same-sex marriages include (See O.C.G.A. § 19-6-5):
(1) The standard of living established during the marriage;
(2) The duration of the marriage;
(3) The age and the physical and emotional condition of both parties;
(4) The financial resources of each party;
(5) Where applicable, the time necessary for either party to acquire sufficient education or training to enable him to find appropriate employment;
(6) The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education, and career building of the other party;
(7) The condition of the parties, including the separate estate, earning capacity, and fixed liabilities of the parties; and
(8) Such other relevant factors as the court deems equitable and proper.
(b) All obligations for permanent alimony, however created, the time for performance of which has not arrived, shall terminate upon remarriage of the party to whom the obligations are owed unless otherwise provided.
Obtaining Help with a Same-Sex Marriage
If you are facing divorce and have questions about how it affects the division of assets, debts, child custody, support and other issues of same-sex marriages, call us at 770-609-1247 to discuss your case with one of our experienced and caring Georgia divorce and family law attorneys. Contact >>